NOTICE

Decision filed 07/01/14. The text of this decision may be NO. 5-13-0257 changed or corrected prior to the filing of a Petition for IN THE Rehearing or the disposition of the same. APPELLATE COURT OF ILLINOIS FIFTH DISTRICT

NATIONAL RAILROAD PASSENGER CORPORATION, ) Appeal from the KATHY M. RICHARDSON, GATEWAY EASTERN ) Circuit Court of RAILWAY COMPANY, KANSAS CITY SOUTHERN ) Madison County. RAILWAY COMPANY, UNION PACIFIC RAILROAD ) COMPANY, PLATTE PIPE LINE COMPANY, KINDER ) MORGAN PIPELINES (USA), INC., and KINDER ) MORGAN CANADA, INC., ) ) Plaintiffs-Appellants, ) ) v. ) No. 09-L-871 ) TERRACON CONSULTANTS, INC., and MATTHEW S. ) BALVEN, as Special Administrator of the Estate of Heather ) S. Balven, Deceased, ) Honorable ) Dennis R. Ruth, Defendants-Appellees. ) Judge, presiding. ____________________________________________________________________________________________

JUSTICE SPOMER delivered the judgment of the court, with opinion. Justices Goldenhersh and Stewart concurred in the judgment and opinion.

OPINION

¶1 The plaintiffs, National Railroad Passenger Corporation, Kathy M. Richardson,

Gateway Eastern Railway Company, Kansas City Southern Railway Company, Union

Pacific Railroad Company, Platte Pipe Line Company, Kinder Morgan Pipelines (USA),

Inc., and Kinder Morgan Canada, Inc., appeal the order of the circuit court of Madison

County that dismissed their complaint for contribution against the defendants, Terracon

1 Consultants, Inc. (Terracon), and Matthew S. Balven, as special administrator of the

estate of Heather S. Balven, deceased (Heather's estate). For the following reasons, we

affirm in part, reverse in part, and remand for further proceedings.

¶2 FACTS

¶3 The facts necessary to our disposition of this appeal are as follows. On March 12,

2009, while in the course of her employment with defendant Terracon, and while driving

a pickup truck owned by Terracon, decedent Heather S. Balven collided with an Amtrak

train at a railroad grade crossing in Hartford. Both Heather and her unborn fetus of

approximately three months gestation (subsequently named Morgan A. Balven) were

killed instantly in the collision. Litigation ensued, and the plaintiffs in this action settled

wrongful death claims brought by Heather's estate and by Morgan's estate. Following

those settlements, the plaintiffs brought this contribution action against Terracon (count I)

and against Heather's estate (count II), alleging that both Terracon and Heather were

guilty of acts of negligence that caused the collision and therefore proximately caused

Morgan's death. The allegations against Terracon, found in count I, consisted of six

alleged acts of negligence on the part of Heather for which Terracon was allegedly

vicariously liable, and a seventh alleged act of negligence that was allegedly directly

attributable to Terracon and separate from any negligence on the part of Heather: the

alleged failure of Terracon "to properly train and instruct its employees, including

[Heather], concerning safety procedures and practices while crossing railroad tracks

during the performance of their duties."

¶4 Heather's estate moved to dismiss count II, contending that Heather owed no legal

2 duty to her unborn fetus, and that in the absence of a legal duty, no cause of action was

stated or could be stated against Heather's estate by the complaint for contribution. At

the hearing on the motion to dismiss, Terracon orally moved to join Heather's estate's

motion to dismiss, but did not assert, orally or in writing, any separate or additional

grounds for dismissal. Following the hearing, the trial court dismissed both counts of the

complaint for contribution, pursuant to Stallman v. Youngquist,

(1988),

and Cullotta v. Cullotta,

(1997). This timely appeal followed.

Additional facts will be provided as necessary throughout the remainder of this opinion.

¶5 ANALYSIS

¶6 We review de novo the trial court's order dismissing this action. Gregory v.

Farmers Automobile Insurance Ass'n,

(2009). The arguments

of the parties on appeal may be stated quite succinctly: the defendants contend that under

Stallman v. Youngquist,

(1988), no cause of action exists in Illinois by or

on behalf of a fetus against its mother for the unintentional infliction of prenatal injuries,

or even prenatal death, and that, in the absence of such a cause of action, no contribution

claim may be sustained under the Joint Tortfeasor Contribution Act (the Act) (740 ILCS

100/0.01 et seq. (West 2008)). The defendants also contend that: (1) there was no duty

owed by Heather to the general public that would render Heather's estate "subject to

liability in tort" under the Act to Morgan's estate for Morgan's death, the injury for which

the plaintiffs seek contribution; (2) under Stallman, because there is no legal duty on the

part of a mother to her unborn child, there is no proper cause of action by Morgan's estate

for wrongful death against Heather's estate; and (3) no claim for contribution against

3 Terracon, as Heather's employer, for negligent supervision or training of Heather can

stand because the portion of the plaintiffs' complaint purporting to state this claim against

Terracon contains only conclusory factual allegations and therefore asserts no cognizable

cause of action.

¶7 The plaintiffs, on the other hand, contend that because Stallman did not involve a

contribution claim, it should not be read so broadly as to bar the claim in this case.

Instead, the plaintiffs point to People v. Brockman,

(1991), wherein

the Supreme Court of Illinois held that "there need not be actual tort liability in order to

state a cause of action for contribution," as long as "the persons from whom contribution

is sought are potentially capable of being held liable in a court of law or equity," said

potential for liability depending "merely upon their relative culpability in causing the

same injury." The plaintiffs point out that under Brockman, "[s]o valued are principles of

fairness and the avoidance of unjust enrichment that even if a person who might

otherwise be immune has contributed as a cause to the injury he should be liable in

contribution" "even though he cannot be directly liable to the plaintiff."

.

The plaintiffs also contend there is no conflict in this case with Stallman, because

Stallman dealt only with situations in which a fetus was subsequently born alive, and thus

the public policy considerations before the Stallman court−which involved the far-

ranging implications of allowing a living infant to assert liability against his or her

mother for alleged prenatal injuries attributable to the mother's conduct during

pregnancy−are not implicated in a case such as this one, where the fetus did not survive.

¶8 The plaintiffs further contend: (1) Heather breached a duty owed to the general

4 public, including the plaintiffs, and that Stallman notwithstanding, the defendants are

"subject to liability in tort" as a result of that breach; (2) the defendants are "subject to

liability in tort" because Stallman does not preclude a wrongful death claim on the behalf

of Morgan's estate against Heather's estate, and thus does not preclude a contribution

claim by the plaintiffs with regard to that wrongful death claim; and (3) the trial court

erred in dismissing the plaintiffs' claim for contribution against Terracon for failure "to

properly train and instruct its employees, including [Heather], concerning safety

procedures and practices while crossing railroad tracks during the performance of their

duties."

¶9 With regard to the plaintiffs' claim that Stallman is not applicable to this case

because it did not involve a contribution claim and it did not involve a fetus who did not

survive the injuries allegedly inflicted by the tortfeasor, we agree with the defendants that

under Stallman there is simply no duty owed by Heather to Morgan, and that a

contribution claim brought under the Act pursuant to this nonexistent duty is not

sustainable. As the defendants point out, although a cause of action for the wrongful

death of an unborn fetus does exist in Illinois, against the world at large, no Illinois court

has recognized that cause of action when asserted against the mother of the unborn fetus.

We are not persuaded by the plaintiffs' argument that the public policy considerations

discussed in Stallman−which, as noted above, involved a fetus subsequently born

alive−do not apply equally when the fetus does not survive. As the defendants point out,

declining to recognize the applicability of the Stallman holding to situations where a fetus

does not survive the injuries allegedly inflicted unintentionally by the mother of the fetus

5 would create the paradoxical and potentially unjust situation wherein a fetus that did not

survive its injuries could bring a claim against its mother, but a fetus that did survive its

injuries could not. We agree with the defendants that duty should not hinge on the nature

and extent of the injury involved. The Stallman court declined to recognize a legal duty

on the part of a pregnant woman, during her pregnancy, to "guarantee the mental and

physical health of another" at birth, because the recognition of such a legal duty would

create an environment wherein "[m]other and child would be legal adversaries from the

moment of conception until birth." Stallman v. Youngquist,

(1988).

¶ 10 In accordance with this reasoning, and the other thoughtful and compelling public

policy reasoning put forward by the Stallman court (see

), we believe the

court likewise would have rejected the idea that a pregnant woman has a legal duty,

during her pregnancy, to guarantee that her fetus will survive to birth, as that too would

create an environment where mother and child were legal adversaries during the

pregnancy. Accordingly, although we recognize that the Wrongful Death Act (740 ILCS

180/0.01 et seq. (West 2008)) itself does not specifically prevent an unborn fetus from

asserting a claim against an allegedly negligent mother, we hold that the recognition of a

cause of action for wrongful death asserted by an unborn fetus against the mother of the

fetus would be incongruent with the reasoning underlying the Stallman holding that there

is no duty on the part of a mother to her unborn fetus. Therefore, we decline to recognize

such a duty and such a cause of action.

¶ 11 We also agree with the defendants that the detailed and specific reasoning found in

Cullotta v. Cullotta,

(1997), with regard to the distinction

6 between immunity from liability and lack of duty trumps the more general aspirational

statements about the relationship between immunity and contribution under the Act found

in People v. Brockman,

(1991), cited by the plaintiffs. The

Cullotta court ruled that in the absence of a legal duty of care owed to a plaintiff by a

defendant, "no cause of action is stated" because "[t]he existence of a legally recognized

duty is a prerequisite to the very existence of a cause of action, whereas, the existence of

an immunity merely affords a tortfeasor an affirmative defense to a plaintiff's right to

recovery."

. Accordingly, the Cullotta court reiterated that,

pursuant to Stallman, "no cause of action can be stated for maternal prenatal negligence."

. In the case at bar, Heather owed no duty to Morgan, and thus there is no set of

circumstances under which Heather's estate can be "subject to liability in tort" to

Morgan's estate.

¶ 12 The plaintiffs also posit that, aside from any duty owed by Heather to Morgan,

Heather also breached a duty owed to the general public, including the plaintiffs, and that

Stallman notwithstanding, the defendants are "subject to liability in tort" under the Act as

a result of that breach. The plaintiffs concede that no Illinois courts have recognized such

a duty, but cite a number of cases from New York in which courts have, and urge us to

adopt the position of those courts. We are not persuaded by the reasoning of the New

York courts and decline to adopt the position advocated by the plaintiffs. Accordingly,

no contribution claim against Heather's estate under the Act is sustainable, and the trial

court did not err in dismissing the plaintiffs' claims against Heather's estate.

¶ 13 Likewise, because no cause of action against Heather's estate exists that would

7 make it "subject to liability in tort" under the Act to Morgan's estate, the plaintiffs' claims

against Terracon for contribution under the Act for the six alleged acts of negligence by

Heather for which Terracon was allegedly vicariously liable, under the theory of

respondeat superior, fail as well. See, e.g., Carey v. K-Way, Inc.,

(2000) (no liability for employer under theory of respondeat superior where no

liability on part of employee).

¶ 14 We now address the plaintiffs' contention that the trial court erred in dismissing

the plaintiffs' final claim for contribution against Terracon, which was based upon a

seventh alleged act of negligence that, unlike the previous six acts, was allegedly directly

attributable to Terracon and separate from any negligence on the part of Heather: the

alleged failure of Terracon "to properly train and instruct its employees, including

[Heather], concerning safety procedures and practices while crossing railroad tracks

during the performance of their duties." As noted above, although Terracon, at the

hearing on Heather's estate's motion to dismiss, orally moved to join that motion,

Terracon did not assert, orally or in writing, any separate or additional grounds for

dismissal. Not surprisingly, Heather's estate's motion to dismiss did not attack the

plaintiffs' negligent-training claim against Terracon, which, as noted above, was based

upon the purported conduct of Terracon, not of Heather. Accordingly, although Terracon

now asserts multiple reasons why it claims we should affirm the dismissal of the

plaintiffs' complaint, even with regard to the negligent-training claim, those reasons were

never presented to the trial court, although they should have been and very easily could

have been. Therefore, we agree with the plaintiffs that Terracon's objections to the

8 pleadings of the plaintiffs should only be considered on appeal if the plaintiffs' complaint,

"with all the intendments in its favor, wholly and absolutely fails to state a cause of action

at all." Oberman v. Byrne,

(1983); see also 735 ILCS 5/2-

612(c) (West 2012) ("All defects in pleadings, either in form or substance, not objected to

in the trial court are waived.") and Naiditch v. Shaf Home Builders, Inc.,

(1987) (complaint does not "wholly and absolutely" fail to state a cause of

action if, had alleged deficiencies been raised in trial court, plaintiff "might have

remedied the pleading defects now complained of for the first time on appeal"). For the

following reasons, we cannot conclude that the plaintiffs' claim against Terracon, with all

the intendments in its favor, wholly and absolutely fails to state a cause of action at all.

¶ 15 As the plaintiffs point out, a claim for negligent training is "best analyzed under

principles generally applicable to negligence cases." Vancura v. Katris,

(2010). Therefore, the cases cited by the trial court in its order, both of which were

pertinent to the lack of liability on the part of Heather's estate, and the lack of vicarious

liability on the part of Terracon, due to Heather's lack of a duty to Morgan, do not support

the dismissal of the plaintiffs' negligent-training claim, which, under principles generally

applicable to negligence cases, requires an analysis of Terracon's duty to Morgan, apart

from any duty owed by Heather, on the basis of the conduct of Terracon in its training of

Heather. That is because a direct claim of negligence against an employer, such as a

claim for negligent hiring, negligent training, or negligent supervision, differs from a

vicarious liability, or respondeat superior, claim.

. The latter type of claim

generally requires no "malfeasance on the part of the employer," but only legal liability

9 on the part of the employee, which is then imputed to the employer.

The former type

of claim, in contrast, requires that the plaintiff prove "that the employer was itself

negligent." (Emphasis in original.)

The plaintiff must prove the existence of a duty

on the part of the employer to the injured party, a breach of that duty, and an injury

proximately caused by the breach.

"In direct negligence, the plaintiff must prove that

the employer's breach–not simply the employee's malfeasance–was a proximate cause of

the plaintiff's injury."

Significantly, although Illinois courts speak of some type of

malfeasance, wrongdoing, or negligence on the part of the employee that results from the

negligent hiring, training, or supervision of the employer and thus leads to the direct

liability of the employer, no Illinois case of which we are aware has held that the

employee must actually be liable in tort in order for the causes of action to lie. See

Young v. Lemons,

(1994) (noting in negligent hiring and negligent

supervision case that proximate cause focus is on employer's "failure to exercise ordinary

care in hiring or supervision, rather than the wrongful act of the employee" and that no

Illinois case requires employee's wrongful act to result in liability in tort on part of

employee). Accordingly, the fact that Heather cannot be held liable in tort by Morgan

solely because of her special relationship to Morgan as Morgan's mother is not, in and of

itself, determinative of whether Terracon can be held liable in tort by Morgan for its

allegedly negligent training of Heather.

¶ 16 Terracon asserts, citing in support thereof a negligent-entrustment case, that we

should nevertheless affirm the dismissal of the negligent-training claim, pursuant to the

language in Gant v. L.U. Transport, Inc.,

(2002), that the

10 liability of an employer cannot exceed the liability of an employee. However, we agree

with the plaintiffs that Terracon takes the Gant holding out of context; in fact, what the

Gant court recognized was that when an employer has conceded responsibility, under the

theory of respondeat superior, for an employee's negligence, the employer cannot also be

held responsible under a separate theory of negligent entrustment, because under those

circumstances, "the cause of action for negligent entrustment is duplicative and

unnecessary" and allowing it to stand would allow the trier of fact "to assess or apportion

a principal's liability twice."

. In the case at bar, Terracon has not conceded

responsibility under a theory of respondeat superior, and indeed we have held that

Terracon has no liability under the theory of respondeat superior. Thus, the negligent-

training claim is not duplicative and unnecessary, and allowing it to stand will create no

danger of a judge or jury assessing or apportioning Terracon's alleged liability twice.

¶ 17 Accordingly, although we otherwise affirm the order of the trial court, we reverse

the order with regard to the plaintiffs' negligent-training claim against Terracon and

remand for further proceedings, at which time both parties may seek leave of court to

amend their pleadings so that the court may adjudge the viability or nonviability of that

claim.

¶ 18 CONCLUSION

¶ 19 For the foregoing reasons, we affirm in part, reverse in part, and remand for

further proceedings.

¶ 20 Affirmed in part and reversed in part; cause remanded.

11

NO. 5-13-0257 IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT _____________________________________________________________________________________

NATIONAL RAILROAD PASSENGER CORPORATION, ) Appeal from the KATHY M. RICHARDSON, GATEWAY EASTERN ) Circuit Court of RAILWAY COMPANY, KANSAS CITY SOUTHERN ) Madison County. RAILWAY COMPANY, UNION PACIFIC RAILROAD ) COMPANY, PLATTE PIPE LINE COMPANY, KINDER ) MORGAN PIPELINES (USA), INC., and KINDER ) MORGAN CANADA, INC., ) ) Plaintiffs-Appellants, ) ) v. ) No. 09-L-871 ) TERRACON CONSULTANTS, INC., and MATTHEW S. ) BALVEN, as Special Administrator of the Estate of Heather ) S. Balven, Deceased, ) Honorable ) Dennis R. Ruth, Defendants-Appellees. ) Judge, presiding. _____________________________________________________________________________________

Opinion Filed: July 1, 2014 _____________________________________________________________________________________

Justices: Honorable Stephen L. Spomer, J.

Honorable Richard P. Goldenhersh, J., and Honorable Bruce D. Stewart, J., Concur _____________________________________________________________________________________

Attorneys Richard E. Boyle, Leslie B. Shinners, Boyle Brasher LLC, 5000 W. Main Street, for P.O. Box 23560, Belleville, IL 62223-0560; Mark E. Christensen, Katherine Appellants Amelotte Jones, Christensen & Ehret LLP, 135 South LaSalle, Suite 4200, Chicago, IL 60603 _____________________________________________________________________________________

Attorneys Roger F. Wilson, Law Office of Stephen H. Larson, 940 West Port Plaza, Suite for 208, St. Louis, MO 63146 (attorney for Terracon Consultants, Inc.) Appellees Susan M. Herold, Jeffrey K. Suess, Rynearson, Suess, Schnurbusch & & Champion, LLC, 500 N. Broadway, Suite 1550, St. Louis, MO 63102 (attorneys for Matthew S. Balven, as Special Administrator of the Estate of Heather S. Balven, Deceased) _____________________________________________________________________________________